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Two judges have held that: - BL did not waive any constitutional rights when she signed the cheer contract. - BL’s Snap was off campus speech. - BL’s Snap di

by hluska 6y ago

Two judges have held that: - BL did not waive any constitutional rights when she signed the cheer contract. - BL’s Snap was off campus speech. - BL’s Snap did not cause any actual or foreseeable disruption of school activities. Here’s the appeal court’s ruling: https://www2.ca3.uscourts.gov/opinarch/191842p.pdf https://www2.ca3.uscourts.gov/opinarch/191842p.pdf

giantg2 6y ago
"BL did not waive any constitutional rights when she signed the cheer contract." This is very interesting. I guess they mean any off campus rights. Many rights are clearly restricted on campus, including school events at any location. I also see the bring up that the prohibited conduct in the contract is not strictly defined. Yet we have plenty of laws which are also not strictly defined and they are upheld (so much for lenity). Thanks for the link. It's interesting that the judges contend that they should only be looking at the first snap even though the background contains quoted testimony that both captions were part of the concern. Then they go on to say that the first caption is not information, which might be true. But the second one does have negative information about the selection decision. Although it's also interesting that opinions are not considered information, when by any other test they would be. I just find it odd that they would overlook the testimony they quoted in the background previously. And a similar issue with when they talk about the act occurring between seasons, yet tryouts were supposedly just held for that season. It's also interesting that they didn't examine it from a performance aspect. They do mention a test of whether the person can be punished off campus for the speech. They only investigate this from the standpoint of the team being "the government". They do not look into whether private teams punish students for similar issues, and thus if the school team requires the same customary practices to effectively function. Essentially the same reasoning that schools are allowed to restrict other rights in the classroom - that they need the customary authority that comes with the implementation of activity (school, team, etc) because being restricted to only the role of government would make them an ineffective institution. It makes one wonder if the government should be involved in education at all if it requires constant exceptions to constitutional rights, that essentially the elements of running a school are in contention with the laws of the government and the rights of the students. I guess we just have to wait for the SCOTUS decision to remedy the split.
- dragonwriter 6y ago
  > This is very interesting. I guess they mean any off campus rights No, they mean any Constitutional rights. > Many rights are clearly restricted on campus, including school events at any location. To the extent that that is true, that’s not a waiver by the student. But while it allows considerable regulation, the limitation on free speech on schools is quite narrow. > Yet we have plenty of laws which are also not strictly defined and they are upheld (so much for lenity). Lenity is not absence of strict definition of what is prohibited, but government’s power to not fully prosecutr what is prohibited. Strict definition is about the boundary of what may be enforced. > They do mention a test of whether the person can be punished off campus for the speech. They only investigate this from the standpoint of the team being "the government". They do not look into whether private teams punish students for similar issues, and thus if the school team requires the same customary practices to effectively function. That’s because the government has no inherent right to do what private entities may do that trumps Constitutional limits on government. If cheerleading teams need things that exceed the legitimate power of government to function (which I doubt, but whatever), then the solution is for the government not to run cheerleading teams, not for thr government to assume unconstitutional powers. > Essentially the same reasoning that schools are allowed to restrict other rights in the classroom - that they need the customary authority that comes with the implementation of activity (school, team, etc) because being restricted to only the role of government would make them an ineffective institution. That is not the basis for the (fairly narrow, in the case of free speech) power of government to regulate conduct in schools beyond what it can do in other contexts.
  - hluska 6y ago
    Wow, brilliant reply. I owe you for this one!
  - giantg2 6y ago
    "No, they mean any Constitutional rights" So knives and guns aren't banned? Drug searches without consent are ok? "To the extent that that is true, that’s not a waiver by the student. But while it allows considerable regulation, the limitation on free speech on schools is quite narrow." It seems quite broad based on the case laws they cite. It can restrict vulgarity, imaginary stories containing violence, prayer, and basically any topic they feel would cause a disturbance, which is a lot. "Lenity is not absence of strict definition of what is prohibited, but government’s power to not fully prosecutr what is prohibited. Strict definition is about the boundary of what may be enforced." If a law is defined using vague terms, then any ambiguity is supposed to benefit the defendant. The reasoning is that you can't expect people to abide by a law that is unknowable because it lacks a clear definition. "then the solution is for the government not to run cheerleading teams, not for thr government to assume unconstitutional powers." "That is not the basis for the (fairly narrow, in the case of free speech) power of government to regulate conduct in schools beyond what it can do in other contexts." Exactly my point about education in the previous comment. These exceptions to rights that are necessary for the school to function, by your own argument, make it so that the government should not be running schools at all. You reference these narrow restrictions from previous rulings. On what basis where they created? Not on some Constitutional text, but on the court deciding those rights can be restricted. So too could they rule in this case and cement a restriction that was not challenged before. "That is not the basis for the (fairly narrow, in the case of free speech) power of government to regulate conduct in schools beyond what it can do in other contexts." Then what is? I see nothing in the Constitution allowing for those restrictions on this right. They were manufactured by the court through common law customs/beliefs and cemented in case law.

by hluska 6y ago

giantg2 6y ago

"BL did not waive any constitutional rights when she signed the cheer contract." This is very interesting. I guess they mean any off campus rights. Many rights are clearly restricted on campus, including school events at any location. I also see the bring up that the prohibited conduct in the contract is not strictly defined. Yet we have plenty of laws which are also not strictly defined and they are upheld (so much for lenity). Thanks for the link. It's interesting that the judges contend that they should only be looking at the first snap even though the background contains quoted testimony that both captions were part of the concern. Then they go on to say that the first caption is not information, which might be true. But the second one does have negative information about the selection decision. Although it's also interesting that opinions are not considered information, when by any other test they would be. I just find it odd that they would overlook the testimony they quoted in the background previously. And a similar issue with when they talk about the act occurring between seasons, yet tryouts were supposedly just held for that season. It's also interesting that they didn't examine it from a performance aspect. They do mention a test of whether the person can be punished off campus for the speech. They only investigate this from the standpoint of the team being "the government". They do not look into whether private teams punish students for similar issues, and thus if the school team requires the same customary practices to effectively function. Essentially the same reasoning that schools are allowed to restrict other rights in the classroom - that they need the customary authority that comes with the implementation of activity (school, team, etc) because being restricted to only the role of government would make them an ineffective institution. It makes one wonder if the government should be involved in education at all if it requires constant exceptions to constitutional rights, that essentially the elements of running a school are in contention with the laws of the government and the rights of the students. I guess we just have to wait for the SCOTUS decision to remedy the split.

dragonwriter 6y ago
> This is very interesting. I guess they mean any off campus rights No, they mean any Constitutional rights. > Many rights are clearly restricted on campus, including school events at any location. To the extent that that is true, that’s not a waiver by the student. But while it allows considerable regulation, the limitation on free speech on schools is quite narrow. > Yet we have plenty of laws which are also not strictly defined and they are upheld (so much for lenity). Lenity is not absence of strict definition of what is prohibited, but government’s power to not fully prosecutr what is prohibited. Strict definition is about the boundary of what may be enforced. > They do mention a test of whether the person can be punished off campus for the speech. They only investigate this from the standpoint of the team being "the government". They do not look into whether private teams punish students for similar issues, and thus if the school team requires the same customary practices to effectively function. That’s because the government has no inherent right to do what private entities may do that trumps Constitutional limits on government. If cheerleading teams need things that exceed the legitimate power of government to function (which I doubt, but whatever), then the solution is for the government not to run cheerleading teams, not for thr government to assume unconstitutional powers. > Essentially the same reasoning that schools are allowed to restrict other rights in the classroom - that they need the customary authority that comes with the implementation of activity (school, team, etc) because being restricted to only the role of government would make them an ineffective institution. That is not the basis for the (fairly narrow, in the case of free speech) power of government to regulate conduct in schools beyond what it can do in other contexts.
- hluska 6y ago
  Wow, brilliant reply. I owe you for this one!
- giantg2 6y ago
  "No, they mean any Constitutional rights" So knives and guns aren't banned? Drug searches without consent are ok? "To the extent that that is true, that’s not a waiver by the student. But while it allows considerable regulation, the limitation on free speech on schools is quite narrow." It seems quite broad based on the case laws they cite. It can restrict vulgarity, imaginary stories containing violence, prayer, and basically any topic they feel would cause a disturbance, which is a lot. "Lenity is not absence of strict definition of what is prohibited, but government’s power to not fully prosecutr what is prohibited. Strict definition is about the boundary of what may be enforced." If a law is defined using vague terms, then any ambiguity is supposed to benefit the defendant. The reasoning is that you can't expect people to abide by a law that is unknowable because it lacks a clear definition. "then the solution is for the government not to run cheerleading teams, not for thr government to assume unconstitutional powers." "That is not the basis for the (fairly narrow, in the case of free speech) power of government to regulate conduct in schools beyond what it can do in other contexts." Exactly my point about education in the previous comment. These exceptions to rights that are necessary for the school to function, by your own argument, make it so that the government should not be running schools at all. You reference these narrow restrictions from previous rulings. On what basis where they created? Not on some Constitutional text, but on the court deciding those rights can be restricted. So too could they rule in this case and cement a restriction that was not challenged before. "That is not the basis for the (fairly narrow, in the case of free speech) power of government to regulate conduct in schools beyond what it can do in other contexts." Then what is? I see nothing in the Constitution allowing for those restrictions on this right. They were manufactured by the court through common law customs/beliefs and cemented in case law.